UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SUNDOR BRANDS INC

v.

NLRB


98-1184a

D.C. Cir. 1999


*	*	*


Ginsburg, Circuit Judge: Local 68 of the International  Union of
Operating Engineers, AFL-CIO, petitioned the  National Labor Relations
Board to hold a representation  election among certain employees at a
plant operated by  petitioner Sundor Brands, Inc. Over Sundor's
objection, the  Regional Director of the NLRB approved a less than
plant- wide bargaining unit and ordered an election. Sundor ap- pealed
the Regional Director's unit determination to the  Board, which
affirmed. When the Union won the representa- tion election, Sundor
refused to bargain with it and was held  to have committed an unfair


Sundor now petitions for review of the Board's order in the  unfair
labor practice case on the ground that the underlying  bargaining unit
determination is unlawful. We hold more  narrowly that the Board
failed adequately to explain its unit  determination. Accordingly, we
remand this matter for fur- ther proceedings before the NLRB.


I. Background


In order to understand this controversy one must know  something about
how Sundor manages its fruit juice beverage  plant in South Brunswick,
New Jersey. Work there is orga- nized pursuant to a team-based method
of management that  Sundor calls its "High Performance Work System."
Under  that system, the Company assigns most of its non-managerial 
employees each to a so-called team. Instead of giving re- sponsibility
for a specific task to a specific individual, the  Company assigns all
the tasks in a given part of the plant to a  team. It may, for
example, give a team in the packing  department not only the job of
operating the packing equip- ment in its area, but also responsibility
for maintaining that  equipment and for checking the quality of the
product being  packed. Sundor expects each of its employees to be able
to  perform all of the tasks for which his team may be responsi- ble.
At least in principle, therefore, the job duties of many  employees
overlap significantly.


Each newly hired employee starts as a "Level 1 technician"  and
receives a standard pay and benefit package. A Level 1  technician who
demonstrates a mastery of basic operational  tasks may bid for a more
specialized and better paying Level  2 position. A similar increase in
specialization and pay  accompanies promotion to Level 3. All
non-managerial em- ployees are subject to the same disciplinary rules
and stan- dards for promotion, and all use the same parking lot,
cafete- ria, and smoking room.


Not all non-managerial employees are members of a work  team. Of
particular relevance here, non-team members in- clude the Maintenance
Group Leaders (MGLs), the Level 3  Electrical and Instrumentation
Technicians (EITs), and the  sole Level 3 Utilities Coordinator


In March, 1997 the Union petitioned the Regional Director  of the NLRB
to hold a representation election for a bargain- ing unit consisting
of all full-time and regular part-time  Advanced Maintenance
Technicians (AMTs), who are team  members; and of the EITs and UCs,
who are not. Sundor  objected to the petition, contending that the
employees the  Union sought to represent have nothing in common except
 what they also share with all non-managerial employees.  Because of
the homogenizing influence of the High Perfor- mance Work System, the
Company maintained, the only  appropriate bargaining unit would
include all the non- managerial employees in the plant.


After holding a hearing, the Regional Director ordered a 
representation election for a unit consisting of all AMTs,  EITs, UCs,
and MGLs. Despite the unusual organizational  scheme in the plant, he
reasoned, these groups of employees  have a community of interest
distinct from that of the other  employees because they: (1) have
specialized skills related to  the maintenance of plant equipment; (2)
are responsible for  the performance of maintenance tasks; (3) spend
some part  of their working day in the maintenance shop; (4) interact 
frequently with each other; (5) earn relatively high salaries;  and
(6) insofar as they do maintenance work, are supervised  separately.


Upon Sundor's appeal, the Board generally affirmed but  held that,
because the Company had raised a substantial  objection to their
inclusion in the unit, Level 2 UCs should  cast ballots marked as
challenged. The parties did not  receive the Board's order, however,
until the election was  underway, and four of the five Level 2 UCs had
already  voted. The Union won the election by a substantial margin 
and the Board certified it as the exclusive bargaining repre-
sentative of the employees in the designated bargaining unit.


In order to contest the Board's unit determination, Sundor  refused to
bargain with the Union. The Board held that the  Company thereby
violated ss 8(a)(1) and (5) of the National  Labor Relations Act, 29
U.S.C. ss 158(a)(1) and (5), and  ordered it to bargain. Sundor now
petitions for review of the  Board's order and the Board cross-applies
for its enforce- ment.


II. Analysis


Under s 9(b) of the National Labor Relations Act, 29  U.S.C. s 159(b),
the Board may certify a group of employees  as a bargaining unit only
if they share a substantial "commu- nity of interest." Bentson
Contracting Co. v. NLRB, 941  F.2d 1262, 1265 (D.C. Cir. 1991). To
determine whether this  standard is met in a particular case, the
Board considers a  variety of factors, including the employees'
"wages, hours and  other working conditions; commonality of
supervision; de- gree of skill and common functions; frequency of
contact and  interchange with other employees; and functional inte-
gration." Ore-Ida Foods, Inc., 313 N.L.R.B. 1016, 1019  (1994),
enforced, 66 F.3d 328 (7th Cir. 1995). No one factor is  controlling.
See Airco, Inc., 273 N.L.R.B. 348, 348 (1984).  Upon judicial review
the Board's unit determination, if sup- ported by substantial
evidence, see Cleveland Constr., Inc. v.  NLRB, 44 F.3d 1010, 1014
(D.C. Cir. 1995), is entitled to  "wide deference" from the court.
Willamette Indus., Inc. v.  NLRB, 144 F.3d 877, 878 (D.C. Cir.


A.Adherence to Precedent


Sundor first argues that the unit determination in this case 
constitutes an improper departure from Board precedent. 


The Board has generally presumed that a plant-wide unit is 
appropriate. See, e.g., Kalamazoo Paper Box Corp., 136  N.L.R.B. 134,
137 (1962).* It follows, according to Sundor,  that a smaller unit is
presumptively inappropriate, yet the  Board failed to consider whether
this presumption was over- come in this case.


The argument is without merit. In American Hospital  Association v.
NLRB, 499 U.S. 606 (1991), the Supreme  Court made it clear that the
Board may certify any appropri- ate unit, and is not limited to the
"single most appropriate"  one. Id. at 610. That a plant-wide unit
presumptively would  be proper, therefore, has no necessary bearing
upon whether  a smaller unit also would be proper. Rather, the Board 
applies the presumption in favor of a plant-wide unit only  when the
union proposes and the employer opposes such a  unit, not when the
union proposes a smaller unit. See, e.g.,  Airco, 273 N.L.R.B. at
348-49; see also American Hosp.  Ass'n, 499 U.S. at 610 ("[T]he
initiative in selecting an appro- priate unit resides with the
employees" seeking representa- tion).


Nor, Sundor's argument to the contrary notwithstanding,  does the
Board's general rule conflict with s 9(c)(5) of the  Act, 29 U.S.C. s
159(c)(5) ("In determining whether a unit is  appropriate ... the
extent to which the employees have  organized shall not be
controlling"). To be sure, by applying  the presumption as it does the
Board gives the Union an  initial advantage should any conflict ensue
regarding the  proper scope of the bargaining unit. This modest
benefit,  however, hardly grants "controlling" weight to the extent
the  Union has organized the employees. See NLRB v. Metropol- itan
Life Ins. Co., 380 U.S. 438, 441-42 (1965) (s 9(c)(5) "was  not
intended to prohibit the Board from considering the  extent of
organization as one factor, though not the control- ling factor, in




__________

n * The Board has created one industry-specific exception to this 
general principle, but it plainly does not apply here. See Willam-
ette, 144 F.3d at 879-80 (Board has consistently approved only 
plant-wide units in the lumber industry).


B.Substantial Evidence


Sundor's more weighty objection is to the sufficiency of the  evidence
supporting the Board's unit determination. As not- ed above, that
decision was predicated upon the Regional  Director's analysis of six
factors. Because there is no sugges- tion in either the Regional
Director's decision or the Board's  order affirming it that any of
those factors was unnecessary  to its decision, we must assume that
the Board relied upon  each of them. If any one is unsupported by
evidence in the  record, therefore, the Board must reconsider its unit
determi- nation. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) 
("The grounds upon which an administrative order must be  judged are
those upon which the record discloses that its  action was based").
Cf. Fleshman v. West, 138 F.3d 1429,  1433 (Fed. Cir. 1998) (remand
unnecessary where it is clear  that agency would have reached the same
result had it  applied correct reasoning). In the event, we conclude
that  there is sufficient evidence in the record to support the 
Board's reliance upon two, and perhaps a third,* of the six  factors
it invoked; its reliance upon the other three is unjusti- fied.




__________

n * With regard to the unit members' pay, the Board's reasoning is  not
entirely clear. The Board suggests in its brief that they receive 
relatively high salaries because they are maintenance employees,  but
that is not the case. The undisputed evidence shows that  Sundor
determines its employees' pay exclusively with reference to  their
experience and skill level; maintenance employees do not earn  more
than equally skilled and equally senior non-maintenance em- ployees.
The Regional Director, however, may have meant only to  distinguish
unit members, all of whom are Level 3 employees, from  non-unit
employees, the majority of whom are at Levels 1 and 2.  Because the
Board is not required to identify the most appropriate  unit, but only
an appropriate one, see American Hosp. Ass'n, 499  U.S. at 610, a
showing that the unit members are better paid than  most non-unit
employees may provide a degree of support for the  conclusion that
they have a distinct community of interests. Upon  remand, the Board
will have to clarify its reasoning if it wants to  rely upon this


First (in the latter category) is the degree to which the  employees
in the unit interact with each other. The Board  points to testimony
suggesting that the MGLs and the AMTs  have largely overlapping job
responsibilities, and that the  AMTs are generally responsible for
performing planned  maintenance work on production equipment. It also
cites  evidence that Level 3 EITs regularly work alongside other 
employees both within the designated unit as well as those  excluded
from it, and that the "maintenance personnel" at- tend a monthly


How the Board could conclude from this evidence that the  employees in
the unit interact frequently with each other  eludes us. That the AMTs
and the MGLs may have common  job duties does not mean they work
together in performing  those duties. As to the Level 3 EITs,
testimony in the record  confirms that they work with other unit
employees in "main- tenance or trouble-shooting functions" but there
is no indica- tion whether they do so with any frequency. The Board's 
strongest point--but only by default--concerns the monthly 
maintenance meetings: They show that members of the unit  have at
least some contact with each other. As Sundor points  out, however,
the AMTs attend meetings with employees  outside the unit not monthly
but daily, and the UC interacts  most consistently with other
utilities employees, not with  other members of the disputed unit.
Perhaps the monthly  maintenance meetings are for some reason so
significant that  they outweigh the apparently extensive, indeed
daily, interac- tion the AMTs have with employees outside the unit.
The  Board has not, however, claimed as much, let alone told us 


Second, the Board based its decision in part upon the  Regional
Director's conclusion that "[a]lthough most of [Sun- dor's] skilled
maintenance employees are members of teams  and receive some direction
from team leaders, they receive  separate direction concerning the
performance of their skilled  maintenance duties." Again, we fail to
see how this factor, on  the facts of this case, lends any support to
the Board's unit  determination. The Board admits--indeed, puzzlingly,
seems  to assert--that each of the four groups in the bargaining unit,


even insofar as they do maintenance work, is supervised  separately,
and that only two of them (the MGLs and the  AMTs) have even one
supervisor (the Technology Manager)  in common. If, upon remand, the
Board is to adhere to its  present unit determination, therefore, it
must explain why  that decision is justified in spite of, not because
of, the  disparate supervision of the employees in the unit.


Finally, the Board asserts that the employees in the unit  have the
common task of ensuring that equipment at the  plant is properly
maintained. At least as to the Level 3 UC,  however, that claim is
grossly overstated. The testimony  describing the UC's
responsibilities is that he does mainte- nance work only to fill in
for a Level 2 UC who is on vacation  or otherwise unavailable; the
bulk of his time is devoted to  training more junior utilities
personnel. Insofar as the  Board's decision to include the Level 3 UC
is based upon his  responsibility for the maintenance of equipment,
therefore, it  is unsupported by substantial evidence.


In short, three of the six factors upon which the Board  relied in
reaching its decision are, in whole or in part, without  support in
the record. In these circumstances, we must  remand this matter for
the Board to reconsider its decision.  In so doing we express no
opinion upon the question whether  the factors for which there is
support in the record could  suffice by themselves to support the
Board's present unit  determination.


C.Late Notice of the Board's Order


Sundor maintains that the Board, by failing to inform the  parties
before voting began that the Level 2 UCs were to cast  challenged
ballots, unfairly interfered with the election. Em- ployees who voted
for the Union believing that it would  represent the Level 2 UCs, the
Company suggests, may have  voted differently had they known that
those employees would  likely be excluded from the unit.


Whatever the merits of this contention, Sundor did not  timely raise it
before the Board. Under 29 C.F.R.  s 102.69(a), an objection to
conduct allegedly affecting the 


result of a representation election must be made within seven  days of
the Board's tally of the ballots. Because the Compa- ny neither raised
its objection in a timely fashion nor alleged  special circumstances
that could excuse its tardiness, the  Board properly declined to
consider it.


III. Conclusion


For the foregoing reasons, the petition for review is grant- ed, the
Board's cross-application for enforcement is denied,  and this matter
is remanded to the Board for further pro- ceedings.


So ordered.